Citation Nr: 1449588
Decision Date: 11/07/14 Archive Date: 11/12/14
DOCKET NO. 10-46 882 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to an evaluation in excess of 20 percent for lumbar spine arthritis and intervertebral disc syndrome, status post discectomy prior to September 9, 2011, and in excess of 40 percent thereafter.
2. Entitlement to an evaluation in excess of 30 percent for total right knee replacement.
3. Entitlement to a compensable evaluation for a right knee scar.
4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
WITNESSES AT HEARING ON APPEAL
The Veteran and his wife
ATTORNEY FOR THE BOARD
Arif Syed, Counsel
INTRODUCTION
The Veteran served on active duty from November 1970 to November 1972 and from July 1973 to July 1991.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
The Veteran was afforded a Travel Board hearing in July 2014 before the undersigned Veterans Law Judge (VLJ). The transcript is of record.
In January 2009, the Veteran filed claims of entitlement to increased disability ratings for his low back and right knee disabilities which were denied in the above-referenced April 2009 rating decision. The Veteran did not file a notice of disagreement to this rating decision. However, VA regulations, specifically 38 C.F.R. § 3.156(b), provide that evidence received within the one year period prior to the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011).
In July 2009, within one year of the April 2009 rating decision, the Veteran was afforded a VA examination for his low back and right knee disabilities. There is no dispute that the VA examination is new and material as it is medical evidence documenting the severity of the Veteran's low back and right knee disabilities. Furthermore, it was not of record at the time of the April 2009 decision, and was not considered by agency decision makers in consideration of the Veteran's low back and right knee disability claims. As new and material evidence was received within a year of the April 2009 decision, this medical evidence must be considered as part of the original claims which prompted that decision. 38 C.F.R. § 3.156(b). Thus, the April 2009 decision is not final.
The Board notes that the Veteran was previously represented in this appeal by Lecia King Wade, PLLC. However, the record reflects that the Veteran has revoked the power of attorney in favor of his representative in this appeal. He confirmed such at the July 2014 Board hearing.
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.
The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The Veteran was last afforded a VA examination in September 2011 as to his service-connected low back and right knee disabilities. Furthermore, at the July 2014 Board hearing, the Veteran indicated that these disabilities have since increased in severity. See the July 2014 Board hearing transcript, page 23. Specifically, with regard to the low back disability, the Veteran stated that he hurts "all the time" and that he cannot do chores, exercise, or bend. He also stated that he has received epidural injections and wears a brace. With respect to his right knee disability, he testified that the knee locks and causes pain. These stated symptoms appear to be more severe than those espoused in the 2011 VA examination. Therefore, based on the lay evidence of worsening symptoms, a new examination is warranted as to these disabilities.
Additionally, the Veteran stated at the July 2014 Board hearing that he has received recent treatment for his lumbar spine and right knee disabilities from his primary care physician as well as his pain management physician, Dr. H., and Dr. T. and Dr. F. See Board hearing transcript, pages 7-9, for full names. However, the Board notes that the most recent private treatment records associated with the Veteran's claims folder are dated in 2011. As such, on Remand, all outstanding private treatment records should be obtained and associated with the Veteran's claims folder.
Finally, at the July 2014 Board hearing, the Veteran indicated that his low back and right knee disabilities caused him to stop working. Furthermore, the Veteran testified that he has not worked since 2005. The Board therefore finds that the issue of a total disability rating for compensation based on individual unemployability (TDIU) has been raised in the context of his increased rating claim; the issue is properly before the Board. See Rice v. Shinseki, App. 447 (2009). Thus, the matter should be remanded to the AOJ for adjudication of the Veteran's claim for the issue of TDIU, in accordance with the holding in Rice.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information.
2. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claims remanded herein. Of particular interest are records from the Veteran's primary care physician as well as records from Dr. T., Dr. F., and Dr. H. See Board hearing transcript, pages 7-9, for full names. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record.
If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond.
3. Thereafter, schedule the Veteran for appropriate VA examination(s) to assess the current severity of the Veteran's service-connected total right knee replacement and right knee scar. The electronic claims file, to include any pertinent records contained in the Virtual VA eFolder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail.
Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain.
The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation.
The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups.
In addition, the examiner is to provide a detailed review of the history, current complaints, and the nature and extent of the Veteran's right knee scar.
All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided.
4. Schedule the Veteran for appropriate VA examination(s) to assess both the neurological and orthopedic manifestations of the Veteran's service-connected lumbar spine disability. The electronic claims file, to include any pertinent records contained in the Virtual VA eFolder must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail.
Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain.
The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation.
The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups.
All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided.
5. Schedule the Veteran for appropriate VA examination(s) in order to obtain an opinion as to the functional impairment of the Veteran's service-connected disabilities, which include the low back disability, right knee disability, left knee injury status post total knee replacement with degenerative changes, bilateral hearing loss, tinnitus, radiculopathy of the right lower extremity, tinea unguium and tinea pedis, right knee scar, and low back scar. The electronic claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed.
All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The AOJ should ensure that the examiner provides all information required for rating purposes.
The examiner(s) should also interview the Veteran as to his employment and education history. The examiner is asked to provide an assessment of the functional impairment associated with the Veteran's service-connected disabilities as related to the Veteran's ability to perform activities required in various occupational situations such as walking, standing, and sedentary tasks.
6. Review the claims file to ensure that all of the foregoing
requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal, to include TDIU. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran with the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).